Hull v. Collins

259 Wis. 453
CourtWisconsin Supreme Court
DecidedOctober 9, 1951
StatusPublished
Cited by21 cases

This text of 259 Wis. 453 (Hull v. Collins) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hull v. Collins, 259 Wis. 453 (Wis. 1951).

Opinions

[455]*455Brown, J.

If Arling Hull had survived his aunt, Flora D. Ries, who died intestate December 4, 1949, he would have been one of her heirs at law. Fie did not survive her but he left a daughter who did. She is Laverne Hull Barfknecht, the interested defendant and respondent here. An order of the county court recognized her as one of Flora D. Ries’ heirs at law and another order assigned to her an undivided one fourth of the residue of Mrs. Ries’ estate. The appellant from both orders is Mrs. Ries’ nephew whose share, as an heir at law, is diminished by reason of Laverne’s participation in the division of the estate. To exclude her he relies on the fact that Arling Hull’s widow, the respondent’s mother, married one Peter Wahl who then adopted Laverne. Appellant contends that the effect of the adoption is to change Laverne’s status to that of Peter’s own child and to remove her from Mrs. Ries’ line of descent and inheritance.

The question is one of statutory construction. The statutes which control are those in force at the time of the death of the intestate. Estate of Hood (1931), 206 Wis. 227, 239 N. W. 448. The pertinent ones are sec. 237.04 and sec. 322.07, Stats. 1947. The former directs that the right of descent to and from an adopted person shall be as prescribed in sec. 322.07. That declares:

“322.07 Effect of adoption. (1) Except as otherwise provided in this section, the effect of the order of adoption is to completely change the legal status of the adopted person from that of a child of the natural parents to that of a child of the adoptive parents; and to free the adopted person from all legal obligations to or on account of the natural parents, and vice versa.
“(2) If the adopted person is not survived by a spouse or by issue or by an adoptive parent and there is no heir or next of kin of the adoptive parents, the property of the adopted person shall descend and be distributed as though there had been no adoption.
“(3) If a parent of the person adopted is married to the adoptive parent the relation of the child to the natural parent is not altered by the adoption.
[456]*456“(4) The adopted person does not lose the right to inherit from his natural parents.”

We think sec. 322.07 (1), Stats., makes it perfectly clear and unmistakable that the legal status of Laverne Hull was thus changed by the order of adoption so that in legal effect she became the child of Peter Wahl and the former Mrs. Arling Hull. As such she has no claim upon the estate of Arling Hull’s aunt, Mrs. Ries, unless some following subsection of sec. 322.07 has given it to her. We find none which does, while the express reservation of the right of inheritance by the adopted child from its natural parent's in sec. 322.07 (4) reinforces the sweeping effect of sec. 322.07 (1) to deny any such right from other natural kin.

The learned county court considered that sec. 322.07 (4), Stats., did not in clear and unmistakable language cut off the right of- Laverne to inherit from her father’s aunt, which she would have without question were it not for her adoption but, in reading sub. (4), sub. (1) must not be ignored. We think the county court’s interpretation fails to recognize that sec. 322.07 (1) in clear and unmistakable words removed Laverne from consideration as one of the Hull family except as subsequent provisions permit her to be so considered; and a search of those provisions reveals that it is only in the case of inheritance from parents that the legislature has declared the right to inherit from natural kin has not been lost by virtue of the adoption into a new family.

Respondent cites Estate of Bradley (1925), 185 Wis. 393, 201 N. W. 973. The Bradley Case dealt with a claim by an adopted child that it was an heir at law of the brother of the adoptive parent. It is thus unlike the present action which is concerned with inheritance between natural relatives, but respondent submits that the language of the opinion is applicable. It was said there, page 395, that any statute which interferes with the principle that the property of intestate deceased persons should descend to kindred of the blood or [457]*457which interrupts the natural course of descent of property should be strictly construed; and “. . . the right to inherit property is a natural right which the legislature cannot destroy.” This last is a paraphrase- of Nunnemacher v. State (1906), 129 Wis. 190, 198, 108 N. W. 627, and is also quoted in Estate of Sauer (1934), 216 Wis. 289, 257 N. W. 28.

The Nunnemacher Case tested the constitutionality of the Inheritance Tax Law. It had nothing whatever to do with adoption. The argument had been made that the Inheritance Tax Law was unconstitutional because it diverted a part of the deceased’s property from the heirs. Mr. Chief Justice Winslow spoke for the court and in sustaining the constitutionality of the law as a tax measure he upheld the right to inherit property as one which the legislature could not constitutionally wholly take away. But he said, further (p. 202) :

“It is true that these rights are subject to reasonable regulation by the legislature; lines of descent may be prescribed, the persons who can take as heirs or devisees may be limited, collateral relatives may doubtless be included or cut off, the ' manner of the execution of wills may be prescribed, and there may be much room for legislative action in determining how much property shall be exempted entirely from the power to will, so that dependents may not be entirely cut off.”

As the Nunnemacher Case was a tax case, when the court’s remarks are applied to matters of adoption as in the Bradley Case or the present one, they are dicta, but the dictum supports appellant’s theory rather than respondent’s, by recognizing the legislature’s power to prescribe lines of descent and to limit heirship.

It is on Estate of Sauer, supra, that respondent chiefly relies. Mrs. Sauer died intestate leaving a son and a daughter. The daughter had been adopted by one Stutzke. The county court held that the adoption has not destroyed the daughter’s right to inherit from her natural mother. Oh the appeal we said (p. 292) :

[458]*458“The appellant earnestly contends that the first sentence of sec. 322.07 should be construed as destroying every vestige of an adopted child’s relationship to his natural parents, including the right to inherit from them, and that such child after his adoption should be considered as though born in the wedlock of his adoptive parents. There would be considerable force to the contention if sec. 322.07 contained no more than the first sentence. Had the legislature intended the first sentence of that section to have the meaning given to it by the appellant, it would have been unnecessary to enact much of the remainder of that section. It is our opinion that the legislature did not intend to deny to an adopted child the right to inherit from his natural parents. Certainly there is no explicit and unmistakable language impelling a contrary conclusion.”

The first sentence of the statute referred to is:

“Effect of adoptions.

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Hull v. Collins
259 Wis. 453 (Wisconsin Supreme Court, 1951)

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Bluebook (online)
259 Wis. 453, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hull-v-collins-wis-1951.